DISPOSITION:

[*1] Plaintiffs' motion for class certification [Dkt. No. 24] and request for a permanent injunction [Dkt. No. 1] granted. 

COUNSEL:

For JOHN DOE, JOHN ROE, CONNECTICUT HARM REDUCTION COALITION, plaintiffs: Graham Boyd, American Civil Liberties Union Foundation, New Haven, CT.

For JOHN DOE, JOHN ROE, CONNECTICUT HARM REDUCTION COALITION, plaintiffs: Alicia L. Young, A.C.L.U., National Legal Dept, New York, NY.

For BRIDGEPORT POLICE DEPARTMENT, WILBUR L. CHAPMAN, defendants: John Richard Mitola, Barbara Brazzel-Massaro, City of Bridgeport, Office of the City Attorney, Bridgeport, CT. 

JUDGES:

Janet C. Hall, United States District Judge. 

OPINIONBY:

Janet C. Hall 

OPINION:

RULING ON PLAINTIFFS' APPLICATION FOR PRELIMINARY INJUNCTION [DKT. NO. 1] AND MOTION FOR CLASS CERTIFICATION [DKT. No. 24]

The plaintiffs John Doe and John Roe n1 bring a putative class action, on behalf of themselves and a class of similarly situated injecting drug users, against the Bridgeport Police Department and its chief, Wilber L. Chapman, in his official capacity, for violation of the plaintiffs' fourth amendment rights to be free from illegal search and seizures, false arrest and malicious prosecution. The Connecticut [*2] Harm Reduction Coalition, a non-profit association organized to educate, train, and advocate for pragmatic public-health-oriented models of drug use prevention, treatment, and policy, is also a plaintiff in the action. The plaintiffs bring this action against the defendants pursuant to 42 U.S.C. § 1983.

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n1 The court granted the Plaintiffs' Motion to Proceed under Fictitious Name [Dkt. No. 15] on November 13, 2000.

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The plaintiffs filed an Application for Temporary Restraining Order on November 13, 2000. The court held oral argument on the Application with both sides present on that day. On November 15, 2000, the court issued the following temporary restraining:

Defendants Bridgeport Police Department and Wilber L. Champan, Chief of the Bridgeport Police Department, their agents, employees, assigns, and all persons acting in concert or participating with them are enjoined and restrained from searching, stopping, arresting, punishing or penalizing in any way, or threatening to search, [*3] stop, arrest, punish or penalize in any way, any person who is a participant in the Bridgeport Syringe Exchange Program, based solely upon that person's possession of up to thirty sets of injection equipment, whether sterile or previously-used and possibly containing a residue of drugs.

Ruling on Plaintiffs' Application for Temporary Restraining Order (Dkt. No. 18) at 26. Now before the court are the plaintiffs' request for a preliminary injunction and motion for class certification. At oral argument on December 15, 2000, the court, with the consent of both parties, consolidated the hearing on the preliminary injunction with a final trial on the merits and converted the request for a preliminary injunction to a request for a permanent injunction, pursuant to Fed. R. Civ. P. 65(a)(2). For the reasons stated herein, the motion for class certification [Dkt. No. 24] and the request for a permanent injunction [Dkt. No. 1] are granted.

I. FACTS

In 1990, the Connecticut legislature enacted Conn. Gen. Stat. § 19a-124 to mandate the establishment of an experimental needle and syringe exchange program in New Haven. In 1992, the legislature amended section 19a-124 to [*4] expand the needle and syringe exchange program to Bridgeport and Hartford and to, inter alia, "provide that program participants receive an equal number of needles and syringes for those returned, up to a cap of five needles and syringes per exchange." As part of another legislative enactment in 1992, Conn. Gen. Stat. § 21a-240(20)(A)(9) was amended (and renumbered as section 21a-240(20)(A)(ix)) by adding "in a quantity greater than eight" to provide in the criminal drug enforcement statutes' definitional section that:

"Drug paraphernalia" refers to equipment, products and materials of any kind which are used, intended for use or designed for use in . . . injecting, ingesting, inhaling or otherwise introducing into the human body, any controlled substance contrary to the provisions of this chapter including, but not limited to: . . . (ix) in a quantity greater than eight hypodermic syringes, needles and other objects used, intended for use or designed for use in parenterally injecting controlled substances into the human body

. . .

(emphasis added). Later in 1992, the legislature amended section 21a-240(20)(A)(ix) to increase the number of hypodermic [*5] syringes and needles from "eight" to "ten." In 1994, the legislature changed the limit in section 19a-124(b) from "five" to "ten" syringes and needles. In 1999, the legislature passed a bill which raised the quantity of hypodermic syringes and needles in section 19a-124(b) and in section 21a-240(20)(A)(ix) from "ten" to "thirty."

The Bridgeport Public Health Department administers the Syringe Exchange Program ("Exchange") in Bridgeport. "The Exchange operates every day of the week during well-publicized hours," and "clients may come to the Health Department during business hours for counseling, addiction treatment referrals, and to exchange injection equipment, or they may do so at the Exchange van, which travels to specified locations in Bridgeport." Dkt. No. 1 at P 30. "As with other exchange programs, the Bridgeport Exchange provides sterile injection equipment in return for used equipment." Id.

The plaintiffs have filed declarations and affidavits of the plaintiffs John Roe and John Doe [Dkt. Nos. 9 & 10]; Robin Clark-Smith, the AIDS Program Coordinator for the Syringe Exchange Program of the Bridgeport Public Health Department [Dkt. No. 8]; Anthony Givens, a research [*6] assistant in the I-91 study, which researches how transmission of HIV and Hepatitis is related to how injecting drug users acquire, use, and discard syringes [Dkt. No. 11]; Mark Kinzly, a former coordinator of the Syringe Exchange Program of the Bridgeport Public Health Department and current coordinator of the I-91 study [Dkt. No. 6]; Dr. Robert Heimer, Associate Professor of Epidemiology and Public Health and Associate Professor of Pharmacology at the Yale University School of Medicine [Dkt. No. 7]; and Ricky Blumenthal, Associate Sociologist in the Health Program and Drug Policy Research Center at the RAND Corporation [Dkt. No. 5]. The plaintiffs later filed supplemental declarations of Heimer [Dkt. No. 25] and Kinzly [Dkt. No. 26]. The defendants have supplied affidavits of Jack McCarthy, Director of Health and Human Services of the Health Department of the City of Bridgeport [Dkt. No. 23, Ex. 1]; Rafael Villegas, a Bridgeport Police Department narcotics and vice officer [Dkt. No. 23, Ex. 3]; David Boston, deputy chief of the Bridgeport Police Department [Dkt. No. 23, Ex. 4]; Kathleen Burke, administrative secretary in the Narcotics and Vice Division of the Bridgeport [*7] Police Department [Dkt. No. 23, Ex. 5]; Clark-Smith [Dkt. No. 34]; Thomas E. Gecewicz, Director of Health of the City of Bridgeport [Dkt. No. 33]; and Jackie Cocco, a Connecticut state representative for Bridgeport and Fairfield [Dkt. No. 35]. n2

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n2 The court recognizes the Second Circuit's rule that, "while affidavits may be considered on a preliminary injunction motion, motions for preliminary injunction should not be resolved on the basis of affidavits that evince disputed issues of fact," and that "when a factual issue is disputed, oral testimony is preferable to affidavits." Davis v. N.Y. City Hous. Auth., 166 F.3d 432, 437-38 (2d Cir. 1999) (citing Schulz v. Williams, 38 F.3d 657, 658 (2d Cir. 1994), and Forts v. Ward, 566 F.2d 849, 851 (2d Cir. 1977)). The court discussed this rule with the parties in a conference in chambers on December 15, 2000, and offered the parties the opportunity to present live testimony. Counsel for both sides acknowledged that the only area of any potential dispute--whether Exchange participants keep and carry their identification cards--will not be dispositive of the merits of this case, because both sides agreed that some Exchange participants lose or do not carry the identification cards and that the case does not turn on the exact percentage of participants that keep their cards. Accordingly, both sides agreed that, because no factual issue was really in dispute, no testimony was required, and the court can decide the case on the record before it.

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The Exchange "issues identification cards to injecting drug users who become participants." n3 Declaration of Robin Clark-Smith (Dkt. No. 8) at P 2. The Exchange takes previously-used, potentially-infectious syringes out of circulation and thereby reduces the spread of HIV and other blood-borne diseases by increasing the availability of injection equipment and of access to medical services and substance abuse treatment for injecting drug users. Declaration of Dr. Robert Heimer (Dkt. No. 7) at PP 24, 28. The Exchange requires injecting drug users to provide the Exchange with a previously-used syringe or needle in order to obtain new injection equipment. Declaration of Mark Kinzly (Dkt. No. 6) at P 7; see also Bridgeport Health Department Needle Exchange Protocol (Dkt. No. 23, Ex. 2) at P 7.

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n3 At the court's request, the defendants submitted a sample Exchange identification card to the court by letter dated December 21, 2000. The card is laminated and includes on one side "SYRINGE EXCHANGE PROGRAM PARTICIPANT, Bridgeport Health Department" and an identification number and code name, along with the address and phone number of the Bridgeport Health Department's Syringe Exchange Program. See Court Ex. I. The opposite side of the card includes the following message:

The cardholder is an official participant in the Bridgeport Exchange, an approved exchange through the State of Connecticut. The cardholder is exempt from arrest and prosecution for the possession of syringes furnished to the cardholder by the Bridgeport Health Department. Public Act # 99-2, Connecticut General Statutes 19A - 124.

Id.

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The plaintiffs argue in their Application for Temporary Restraining Order that the defendants continue to arrest and harass injecting drug users in Bridgeport, Connecticut, solely on the basis of the users' possession of hypodermic syringes and needles, whether sterile or previously-used. Dkt. No. 3 at 2. Givens states in his declaration that, "while working on the Bridgeport Exchange van, I frequently observed police harassment of Exchange clients." Dkt. No. 11 at P 7.

The plaintiffs Doe and Roe are both injecting drug users and participants in the Exchange. Dkt. No. 1 at PP 5-6; Dkt. No. 10 at PP 4-6. Doe alleges that the Bridgeport police have "constantly interfered with my ability to use the Exchange" by "often stop[ping] me, tell[ing] me to leave the area [of the Exchange], and threaten[ing] to arrest me." Dkt. No. 10 at P 7. According to Doe, "on several occasions, police officers have ordered me to hand over the injection equipment that I had just received from the Exchange" and "then have broken the syringes so that I could not use them." Id. Doe alleges that he was charged in Seaside Park with possession of drug paraphernalia on September 11, 2000, after the [*10] police officer confiscated the injection equipment that Doe received earlier that day from the Exchange. Id. at PP 8-16. The charge was nolled on November 7, 2000, when Doe appeared in court. Id. at P 18.

Roe alleges that, on October 5, 2000, he was arrested on Shelton Street in Bridgeport by a Bridgeport police officer for possession of drug paraphernalia and possession of narcotics, after the officer seized the injection equipment which Roe was carrying with him. Dkt. No. 9 at PP 7-13. He was jailed for seven days pending bail, before bond was posted for him on October 13, 2000. The prosecutor dropped the charges against him on October 19, 2000. Id. at P 13. Roe alleges that he offered to show the officers his Exchange identification card when he was initially stopped, but was rebuffed in this attempt. Id. at P 12.

II. MOTION FOR CLASS CERTIFICATION

The plaintiffs seek certification of a class of all injecting drug users, present and future, in Connecticut, pursuant to Fed. R. Civ. P. 23(b)(2). Plaintiffs' Motion for Class Certification and Memo. of Points and Authorities in Support (Dkt. No. 24) at 1-2. The defendants respond that "the proposed class [*11] certification is too broad because it would be in direct violation of the intent of Conn. Gen. Stat. Secs. 21a-240(20)(A)(IX) and 19a-124 which cover only those individuals who are participants in the [Exchange] or who have in their possession up to 30 clean hypodermic needles or syringes." Defendants' Objection to Plaintiffs' Request for Class Certification (Dkt. No. 28) at 3. The defendants also argue on separate grounds that the plaintiffs cannot satisfy the requirements of Fed. R. Civ. P. 23(a).

To certify a class under Rule 23, the plaintiffs must satisfy the requirements of Rule 23(a) and one sub-section of 23(b). n4 Marisol A. v. Giuliani, 126 F.3d 372, 375-76 (2d Cir. 1997). The Second Circuit has recently discussed these requirements:

The party seeking to certify a class bears the burden of demonstrating numerosity, commonality, typicality, and adequacy. See Fed. R. Civ. P. 23(a). . . . Before certifying a class, a district court must be persuaded, "after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." [ Gen'l Tel. Co. v. Falcon, 457 U.S. 147, 161, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982)]. [*12] 

Nevertheless, a motion for class certification is not an occasion for examination of the merits of the case. See Sirota v. Solitron Devices, Inc., 673 F.2d 566, 570-72 (2d Cir. 1982). As the Supreme Court has stated, "Nothing in either the language or history of Rule 23 . . . gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 40 L. Ed. 2d 732, 94 S. Ct. 2140 . . . (1974).

Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999).

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n4 Rule 23 provides, in pertinent part:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

. . .

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; . . ..

Fed. R. Civ. P. 23.

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The defendants argue that the court should not certify the proposed class if the court finds, as the defendants argue it should, that some or all of the injunctive relief sought should not be granted to the plaintiffs on the merits of the case. See Defendants' Objection to Plaintiffs' Request for Class Certification (Dkt. No. 28) at 2-3. The defendants, however, misconstrue the nature of the inquiry on a motion for class certification, which "is not an occasion for examination of the merits of the case." Caridad, 191 F.3d at 291 (citation omitted). Therefore, the court reject the defendants' objection on this ground.

The court further notes that the Second Circuit has held that "'Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility . . ..'" Marisol A., 126 F.3d at 377 (citation omitted). With the guidance of this holding and the Caridad ruling, the court will proceed in order through each of the elements of Rule 23(a) and 23(b)(3).

A. Numerosity

Fed R. Civ. P. 23(a)(1) requires the court to find that "the class is so numerous that joinder of all members is impracticable. [*14] " "Numerosity is presumed at a level of 40 members" of a putative class. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citation omitted). However, "courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement." Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (citations omitted). "Determination of practicability depends on all the circumstances surrounding a case, not on mere numbers." Id. at 936 (citation omitted). "Relevant considerations include judicial economy arising from the avoidance of a multiplicity of actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members." Id. (citations omitted).

In this case, the plaintiffs have provided sufficient evidence that the proposed class of injecting drug users in Connecticut is so numerous that joinder of all members is impracticable. n5 See, e.g., Plaintiff's Reply in Support of Motion for Class Certification (Dkt. No. [*15] 30) at 2 n.2. The defendants themselves have produced undisputed evidence that more than 1,200 arrests have been made by the Narcotics and Vice Division and Tactical Narcotics Team of the Bridgeport Police Department alone for narcotics violations in calendar year 2000. See Affidavit of Kathleen Burke (Dkt. No. 23, Ex. 5) at PP 3-4. As such, the court finds that this element is satisfied with respect to a putative class of injecting drug users in Bridgeport.

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n5 Counsel for the defendants conceded at oral argument on December 15, 2000, that the Plaintiff's Reply in Support of Motion for Class Certification [Dkt. No. 30] provides sufficient proof to satisfy the numerosity requirement.

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B. Commonality

Rule 23(a)(2) requires the court to find that "there are questions of law or fact common to the class." "The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact." Marisol A., 126 F.3d at 376 (citations omitted).

Here, the case involves a question [*16] of law common to all injecting drug users in Bridgeport: whether the defendants violate injecting drug users' fourth amendment rights by arresting them solely for the possession of less than thirty-one hypodermic syringes or needles, whether sterile or previously-used, or for the possession of trace amounts of narcotic substances contained therein as residue. This issue, in turn, depends upon the court's resolution of the issue of the legality of the possession of less than thirty-one hypodermic syringes or needles, whether sterile or previously-used, and of trace amounts of narcotic substances contained therein as residue. Accordingly, the court finds that the plaintiffs have satisfied the commonality requirement.

C. Typicality

Rule 23(a)(3) requires the court to find that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Typicality "requires that the claims of the class representatives be typical of those of the class, and 'is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability.'" Marisol A., 126 F.3d at 376 [*17] (citation omitted). "When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims." Robidoux, 987 F.2d at 936-37 (citations omitted). The Second Circuit has recently observed that the commonality and typicality "requirements 'tend to merge' because 'both serve as guideposts for determining whether . . . the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.'" Caridad, 191 F2d at 291 (quoting Falcon, 457 U.S. at 157 n. 13).

Here, the plaintiffs allege the same legal arguments to prove the defendants' liability for violating the fourth amendment rights of injecting drug users in Bridgeport. The plaintiffs argue that the possession of less than thirty-one hypodermic syringes or needles, whether sterile or previously-used and whether empty or containing trace amounts of narcotic substances as residue, is legal under Connecticut [*18] law. Therefore, the plaintiffs argue, any arrest that is made solely on the basis of such possession violates the fourth amendment. The fact that some injecting drug users are active participants in the Exchange while others are not does not alter this analysis. Plaintiff Roe alleges that he was arrested for possession of less than thirty-one hypodermic syringes or needles after identifying himself as a participant in the exchange. See Declaration of John Doe (Dkt. No. 9) at PP 10, 13. However, plaintiff Doe did not seek to protect himself by identifying himself as a participant in the Exchange when he was arrested for possession of less than thirty-one hypodermic needles or syringes. See Declaration of John Doe (Dkt. No. 10). Accordingly, Doe placed himself in the same position legally as a non-exchange-program-participant with regard to the legal arguments made to support the putative class's Fourth Amendment claims. The plaintiffs Roe and Doe, injecting drug users in Bridgeport, are therefore typical of injecting drug users there, whether participants in the Exchange or not.

D. Adequacy of representation

Rule 23(a)(4) requires the court to find that "the representative [*19] parties will fairly and adequately protect the interests of the class." This requirement "is motivated by concerns similar to those driving the commonality and typicality requirements, namely, the efficiency and fairness of class certification." Marisol A., 126 F.3d at 378 (citing Falcon, 457 U.S. at 157 n.13). "Generally, adequacy of representation entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation." Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000) (citation omitted). "Class representative status may properly be denied 'where the class representatives have so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing